Brown v. Moss , 53 Or. 518 ( 1909 )

Mr. Justice Bean

delivered the opinion of the court.

1. The rulings of the court on the admission in evidence of a certified copy of plaintiff’s recorded brand, and the proceedings had on defendant’s objection thereto, were irregular and erroneous. The certificate of plaintiff’s brand, as made and filed by him, was in the form required by statute, and was entitled to record. It had been duly recorded by the county clerk in a book kept for that purpose. All the requirements of the statute in reference to the form and the record of the brand had been fully complied with, and it was, and is, a public record. The statute (Section 4204, B. & C. Comp.) makes a certified copy of such a record proof of the right to use the brand so recorded, and such brand on an animal is prima facie evidence of ownership of the person to whom it belongs. The plaintiff was therefore entitled to have the certified copy admitted as evidence of title, if he subsequently showed that the animals in dispute were branded with such brand. The claim that the brand was not entitled to be recorded because it was the same or similar to a previously recorded brand was a question which could not be properly determined on an objection to the admission of a certified copy thereof in evidence. Whether rightfully or not, it was a matter of record, and entitled to record. The proof thereof was by a certified copy. Where an instrument is not entitled to record, either because there is no law authorizing it to be recorded, or it has not been executed in the form required by law to entitle, it to record, it may be that its proof cannot be made by a certified copy, and that the spreading of it upon the record of the county is a nullity: Musgrove v. Bonser, 5 Or. 313 (20 Am. Rep. 737). But where the instrument is one authorized by law to be recorded, and is in form and substance as required, and it has in fact been recorded, the record is primary evidence of the facts therein stated (Section 755, B. & C. Comp.), and it is proved by a certified copy.

2. The effect of plaintiff’s recorded brand as evidence was for the jury, and the statutory prima facie case made by the record might be overcome by any competent proof. But this would not be a sufficient reason why it should not be admitted for whatevér it might be worth. The court could not in a collateral way, and on an objection to the admission of a certified copy in evidence, assume to determine whether the brand was in fact entitled to record. It is sufficient, so far as its competency is concerned, that it was in fact recorded, and was entitled to be. What the effect of the record may be is another question, in case two similar brands are of record.

' 3. Again, so far as the case in hand is concerned, the brand of plaintiff, as recorded by him, was not the same as that alleged to have been previously recorded by defendant, nor was it similar thereto within the meaning of the statute. The law provides that, when a brand has been recorded in any county, no other person, company, or corporation can record the same brand, •or a brand similar thereto, except with the written consent of the owner of the brand so recorded: Section 4202, B. & C. Comp. The defendant’s brand for horses, as claimed to have been recorded by him, consists of a loop resembling a horseshoe in shape, with the points either up or down, on either or both jaws. Also a similar loop or horseshoe with points up, and with a Greek cross immediately to the right of it on either hip. Plaintiff’s brand, as first recorded, was for horses alone, and consists of a “Horseshoe, with bar under, on one or both jaws, and a horseshoe on one or both jaws.” In August, 1903, he recorded his brand again, including therein one for sheep, as well as horses. In the certificate of adoption he states that this brand for horses is a horseshoe bar on either or both jaws or a horseshoe on either or both jaws, thus indicating that it might be a horseshoe with or without the bar. The property in controversy in this action is alleged by plaintiff, in his complaint, to have been branded with the Horseshoe Bar brand, and it was to prove ownership of the animals so branded that the certified copy of the record of his brand was offered in evidence. In this regard there is no conflict between the brand of plaintiff and defeiidant. The defendant’s brand for horses resembles a horseshoe, with points either up or down, while that of plaintiff is a horseshoe with open end down, and a bar immediately under it. They are therefore, in this respect at least, not the same, and a conflict in some other particular would be immaterial, and not render the entire brand, as recorded, ineffective as prima facie evidence of ownership of animals branded with the Horseshoe Bar brand.

4. Nor do we think that defendant’s brand was in fact recorded as required by law. The legislature in 1887 passed an act providing for the appointment of a stock inspector in each of the counties of the State, and defining his duties. Among other things, he was required to keep a record book, in which he shall enter, as nearly complete as practicable, a description of the marks and brands with which each person in his county marks or brands his horses, cattle, sheep, or hogs: Section 4276, B. & C. Comp. It seems from the testimony that the record, thus required to be kept by the stock inspector of Lake County, in fact remained in the county clerk’s office, and that it was the custom of the clerk, when certificates of brand were delivered to him, to enter a memorandum thereof in the stock inspector’s book. In 1893 the legislature passed an act providing for the recording of stock brands, and making a certified copy thereof prima facie evidence of ownership. This act provides that, when a certificate of brand is delivered to the county clerk, in the form required by the statute, he shall “record said certificate in a book to be kept for that purpose” (Section 4201, B. & C. Comp.), which clearly contemplates that the certificate of brand as filed shall be recorded in full, and not the entry, in some book of what the clerk conceives to be a memorandum of its contents.

5. The effect as evidence of a certified copy of a recorded brand is purely statutory, and therefore a compliance with the requirements of the law is necessary, in order to give the brand such effect.

For these reasons, the judgment of the court below must be reversed, and the cause remanded for a new trial. Reversed.